State v Kawung [2008] PGDC 16; DC677 (2 May 2008)

DC677

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM 86 of 2008

THE STATE

v.

ANDREW KAWUNG

Tabubil: P. Monouluk, SM
2008: March 08th, 28th; April 15th; May 2nd

RULING

CRIMINAL – Rape – Sexual intercourse without consent – Section 347(a) Criminal Code Act Chp. 262 – Prima facie case ruling – Evidence of sexual intercourse – No evidence of threat or resistance – No evidence of lack of consent – Insufficient evidence – Doubt in State’ case – No prima facie case established

COMMITTAL PROCEEDING – Prima facie case ruling – Regard to evidence – Whether on the evidence as it stands the defendant can be lawfully convicted should the matter proceeds to the end – State to call sufficient evidence that touches all elements of the charge – Particular offence – Rape – Lack of consent – No evidence thereof – Doubt in State’s evidence – No prima facie case established

Cases Cited

• Zanette v. Hill (1962) 108 CLR 438
• The State v. Paul Kundi Rape [1976] PNGLR 96
• The State v. John Lauriston Birch [1978] PNGLR 79
• The State v. Andrew Tovue [1981] PNGLR 8
• The State v. Lupam Lau (1981) N309
• The State v. John Wanjil (1997) N1516
  

References

1. Criminal Code Act s. 347(a)
   

Counsel
First Constable PW Stellar Warmanai for the State
Accused in person

2nd May 2008.

1. P. Monouluk: The defendant was arrested and charged with one charge of rape contrary to Section 347(a) Criminal Code Act Chp. 262.

2. The State alleges that on the evening of Saturday 2nd February 2008 the defendant was at Alice Pit, Ningerum, Western Province and proceeded to have sexual intercourse with a female namely Domeyari Karoman (the prosecutrix). The State’s case is that it was done without her consent.

3. I had the benefit to review the State’s evidence presented to the court as a hand-up brief. The State had relied on the fact that the defendant has had sexual intercourse with the cutrix which is not denied however was done so without consent. The defendant, on his part denied in the record-of-interview that force or some other means was used to obtained sex with the cutrix. He insisted that the cutrix was his girlfriend and they have planned earlier to meet that evening.

4. As we can see, the issue clearly is one of consent. As a committal court tasked to scrutinize the evidence offered by the State, I must be able to ask myself whether the evidence offered up to this stage is sufficient enough to make a ruling of prima facie case and thereby commit the defendant to the National Court. To do that a court must first observe certain principles of law that governs this aspect of criminal proceedings. It is now an established principle that when a committal court sits to make a prima facie case ruling or consider a no-case submission the test or the question it must be able to ask is whether on the evidence as it stands a defendant could lawfully be convicted should the matter is allowed to proceed to the end. This test was first applied in the 1976 rape case of The State v. Paul Kundi Rape [1976] PNGLR 96 and adopted thereafter by numerous other cases. Today I seek also to ask myself the same question whether the State had adduced evidence – sufficient enough for me to look at and be able to foresee that the defendant now before me could lawfully be convicted should the matter is allowed to proceed further till the end.

5. To answer this question may I start by looking at one of the subsequent case laws that had deliberated on the same issue. In the case of The State v. John Wanjil (1997) N1516 his Honour Acting Judge Lenalia (then was) in following the case of Zanette v. Hill (1962) 108 CLR 438 where it was said at p. 442 that:

"The question whether there is a case to answer, arising as it does at the end of the prosecution’s evidence in chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands – whether that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred."

6. I agree with his Honour’s view on the 1962 case. Indeed this is a question of law that the court will have to pose when it reaches the end of the State’s case and can only be answered by itself through its review of the State’s evidence and its reconciliation of such with the appropriate elements of the charge which in this case is that of rape. Any failure by the State to call in relevant evidence to substantiate the respective elements of the charge will leave the court no choice but to dismiss the charge, and accordingly discharge the defendant.

7. The charge of rape as defined by law and stated under s. 347 of the Code (supra) is as follows:

"347. Definition of rape

A person who has carnal knowledge of a woman or girl not his wife –

(a) without her consent; or
(b) with her consent, if the consent is obtained –
(i) by force; or
(ii) by means of threats or intimidation; or
(iii) by fear of bodily harm; or
(iv) ...

is guilty of the crime of rape.

Penalty: Subject to Section 19, imprisonment for life."

8. For the court to make a ruling on behalf of the State and make a finding of prima facie case on this charge of rape, it must be able to identify from the materials tendered all relevant and appropriate evidence sufficient enough to touch all important elements of the charge. One very important element of this charge is that of consent which the defendant had insisted above that it was freely given to him by the cutrix. In my review of the evidence in its entirety it is obvious that the date, time and location were clearly made out by the State in its evidence. Not only that, but an important evidence of sexual intercourse was also sufficiently adduced and further corroborated in the admissions by the defendant in the record-of-interview. Despite that there appears to be inconsistencies in the number of times the defendant had penetrated the cutrix. On the one hand the cutrix said she was penetrated three times. On the other, the defendant said this happened only once. This inconsistency may not have much of an impact on the case for reason that it does not change the fact that sexual intercourse did take place, however more or less it may be. The more worrying of these elements though is that of consent.

9. I had the benefit to thoroughly review the evidence and visit the scene for a better appreciation of the surrounding where the incident allegedly took place. According to the evidence, the cutrix said she knew the defendant as an employee of a company of which she lives next to its premises. My visit to the scene indicated that her residence was about 10 – 15 meters from the company premises. She said she was confronted by this defendant at about 7 o’clock in the evening on a main road leading into the company’s yard while she was in the company of her older cousin brother Edwin Kalarus. In my observation of the spot where she was allegedly attacked it was found to be five meters from the nearby residences on either side of the road, 10 meters from her own residence and about 10 – 15 meters from a security guard house next to the company gate, hence the location is not as isolated as I initially thought.

10. There was no evidence that the cutrix and her cousin attempted to fight off the defendant or call out to the nearby residences or the security post for help, which I have mentioned above to be close to the scene of the attack. I do note that the cutrix had said that the defendant had held her by her mouth preventing her to scream yet there was no evidence that her cousin had made any real attempt to rescue her or called out for help. From the evidence it was apparent that her cousin knew the defendant who worked with his father. The cousin said that at first he tried to intervened, however the defendant threatened to beat him up so he left the cutrix with him and went to her residence which I presumed at first to promptly inform her relatives. That did not happen; instead he took his time and only informed them after they enquired of the cutrix. Even then there was no urgency to look for her, evidence revealed that they first sent out the cousin who returned alone into the night to look for the cutrix and when his effort failed they then decided to go out with a search party.

11. My observation further revealed that to get to the river where the sexual intercourse took place the defendant and the cutrix had to go pass a house next to the road leading down to the river. According to the evidence, at the time of the incident there were a couple of adult male persons sitting outside the house which I estimated to be about five meters from the road. While none of them were called as witnesses if they have heard and seen the defendant dragging the cutrix down to the river, apparently there is no evidence that the cousin who knew they were present ran up to them for assistance since the cutrix was abducted towards their direction. Nor was there evidence that the cutrix attempted to attract their attention as she was taken passed their location.

12. I am reminded further of the evidence by the cutrix that when they arrived at the river the defendant proceeded to strip off her clothes before having sex with her three times. She said that the first two acts were continuous before the defendant took a break to gather enough strength for the third. Despite that there is no evidence to show that the cutrix used that break as an opportunity to escape from the tired defendant. In fact the only time the cutrix was able to escape was when she heard her own relatives coming down to the river to rescue her. Instead of running towards them the cutrix decided to avoid them by slipping quietly into the night leaving the defendant behind; her reason being that she did not want her relatives to see her naked. And when the party came upon the defendant he was in no hurry to escape, instead they found him slowly getting back into his underpants; apparently he was completely naked when he had sexual intercourse with the cutrix.

13. It was said in the case of The State v. John Lauriston Birch [1978] PNGLR 79 that "... as a matter of common sense and reasonable inference, if no force was used then it follows that there was no resistance, and if there was no resistance then there was consent". This common sense view of the case is applicable to the case at hand; however we must not loose sight of the fact that there are instances whereby no resistance was offered maybe because of threat or for reasons other than sexual without realizing that the accused was in fact acting under false pretence as was in the case of The State v. Andrew Tovue [1981] PNGLR 8 where the cutrix was led to believe that she was undergoing traditional ‘treatment’ for some medical disorder. When that happens then consent in that type of scenario cannot be interpreted as such under law with respect to sexual intercourse therefore the court must make a finding against the defendant.

14. Certain factors in the present case do raise doubt as to the issue of consent that the State would like the court to believe that did not exist. From the evidence or lack of it there is an apparent lack of force or threat by the defendant nor there was resistance or attempts by the cutrix to seek help even though she had the ability to do so and the evidence clearly suggested that such help was available. Furthermore, the defendant was naked as oppose to the one who would keep most of his clothes on in order to flee with ease; he took his time to dress even when approached by the search party and yet made no attempt to flee. The only person to have fled was the cutrix; ironically from her would-be rescuers. Such circumstances raise questions against the State’s case, particularly on the issue of consent and one can be excused for having doubts when reviewing the actions and inactions of the cutrix and her cousin leading up to the sexual encounter and thereafter.

15. All these circumstances do have a bearing on the court’s mind when considering the State’s case and the court is entitled to make certain inferences on respective elements of this charge of rape. May I reiterate that the issue of consent, like the act of sexual intercourse itself, is a crucial element, and where it is obtained by means other than free will and there is evidence to that effect then such consent is no consent at all hence the court is obliged to rule against the defendant. Where evidence is such that the issue of consent is not clearly spelt out and doubt is formed in the mind of the court then it must throw out the charge and set the defendant free.

16. In answering the question I first posed and following what Pratt J had said in The State v. Lupam Lau (1981) N309 that "... when ... the prosecution has failed to establish one of the essential elements of the charge, then clearly an accused could not be convicted ...", I believe this case is no exception. The State had failed to adduced sufficient evidence to clearly show that there was a lack of consent on the part of the cutrix nor was there enough for me to infer such therefore it is not foreseeable for the defendant to be lawfully convicted should the matter proceed further hence I find no prima facie case against the defendant.

Orders accordingly.

For the State - First Constable PW Stellar Warmanai
The Accused - In person